Microscopic Hair Comparison

The system sometimes gets it wrong. We know that. DNA has been a great tool to identify these errors the factors contributing to wrongful convictions. To date, there have been more than 300 DNA exonerations in the United States alone. In those cases, DNA has shown, without a doubt, the person convicted was not the actual perpetrator of the crime. How did we get it wrong in so many cases? Microscopic hair comparison science could be one of those causes.

DNA is one of many factors attorneys have used to study and determine how an innocent person can be convicted of a crime. DNA is one of many forensic science developments we have seen over the past decades. In 154 of the DNA exonerations, invalid or improper forensic testing and testimony played a part in the conviction. We have been able to use modern advancements in DNA to take a more critical look at the now out-dated forensic tools used to convict thousands of people around the United States and the globe. There have been significant developments in ballistics, fingerprinting, arson, shaken baby syndrome, microscopic hair comparison, and many others. Before DNA, we used serology, blood typing, or microscopic hair comparison to try to help us figure out who committed the crime. As we know now, that testing is not very discriminatory and, compared to what we can do now with DNA, not very useful.

Not only have the sciences advanced, but we have also learned that analysts sometimes gave exaggerated and inaccurate statistical weight to the testing performed. This is evidenced by the recent developments by the FBI regarding microscopic hair analysis. In April of 2015, The United States Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), the Innocence Project, and the National Association of Criminal Defense Lawyers (NACDL) reported that “the FBI has concluded that the examiners’ testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements. Twenty-six of 28 FBI agent/analysts provided either testimony with erroneous statements or submitted laboratory reports with erroneous statements.” (See here for more information). The FBI review focused on cases prior to 2000. Mitochondrial DNA testing became routine around that time and replaced traditional microscopic hair comparison analysis, a much more reliable forensic science.

The 2015 film “Under the Microscope: The FBI Hair Cases,” claims the technique was not developed by scientists, but by law enforcement. The FBI pioneered the technique and claimed it was a valid science for over 50 years, saying they could an expert can make an association between a hair found at a crime scene and a suspect hair. Experts would not only claim an association, but also give a scientific weight to their opinion. Morris Samuel Clark, a former FBI Hair Examiner, appears in the film. Clark testified hundreds of times using hair comparison and says the FBI used approximately 16 different characteristics to compare a known suspect hair to a hair found at the scene. In the film, Clark admits when he testified, there was no database to compare the hairs and there was no means to determine how often the characteristics the FBI used to compare the hairs appeared in the general population. We have even seen hair taken from the same individuals can exhibit distinct characteristics.

FBI analysts were not the only ones who have given these exaggerated statistics in criminal cases. The FBI not only testified erroneously regarding their hair microscopy results, but the FBI also trained state and private lab analysts all over the country. In the on-going government review, at least 35 defendants received the death penalty and errors were identified in over 90% of these cases. 14 of these defendants have already either been executed died of other causes while awaiting execution. As the review continues, these statistics may change.

As a result of this discovery, the FBI has agreed to provide free DNA testing where there is either a court order or a request for testing by the prosecution. Additionally, in federal cases, DOJ will not raise procedural objections, such as statute of limitations and procedural default claims, in response to defendants’ petitions seeking a new, fair trial because of the faulty evidence. But the majority of the FBI examiner testimony was provided in state court prosecutions, and it will be up to the individual states to determine if they will follow DOJ’s leading in permitting these cases to be litigated.

Because of this announcement, lawyers in many states across the nation have begun their own state-specific systematic analysis to review these cases where microscopic hair comparison may have been used to obtain a conviction. To review these cases, lawyers will need to pull the old transcripts, briefing, and police reports. A thorough analysis of the case is necessary to determine how the hair was used to convict, the statistical weight given to the microscopic hair comparison analysis, and how the hair was used in light of the other evidence. Only then will lawyers be able to determine if further investigation is necessary and if the case has potential for post-conviction relief.

In California alone, hair microscopy cases in need of review could number over a thousand. In cases where a testimonial error has been identified and therefore needs litigation, California Penal Code Section 1473 will be used to allow defendants to get back into court. §1473 provides an inmate an avenue to present a petition for writ of habeas corpus on the grounds that false evidence was used to obtain the conviction. The California Innocence Project (CIP) has already identified cases where this testimony was used to convict potentially innocent inmates.